Court-Martial Trial Practice Blog
From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:
The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without "full-scale" trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.
United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).
I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.